BVA9501208
DOCKET NO. 93-01 056 ) DATE
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On appeal from the decision of the
Department of Veterans Affairs Regional Office in New Orleans,
Louisiana
THE ISSUES
1. Entitlement to service connection for hearing loss of the
left ear with tinnitus.
2. Entitlement to service connection for hearing loss of the
right ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Connolly, Associate Counsel
INTRODUCTION
The veteran had active service from February 1972 to January
1976. The veteran also reported service in the Reserves from
1984 to 1986.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from a July 1991, rating decision of the New Orleans,
Louisiana, Regional Office (RO) of the Department of Veterans
Affairs (VA). The notice of disagreement was received in
February 1992. The statement of the case was sent to the veteran
in March 1992. The substantive appeal was received in April
1992.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was exposed to loud noises during
his period of active service from February 1972 to January 1976
in the Marine Corps. He contends that the exposure to loud
noises caused him to develop bilateral hearing loss as well as
tinnitus. He asserts that he does not recall undergoing any
audiological examinations in service and disputes the denial of
his claim based on those alleged examinations. He further
asserts that he initially realized that he had a hearing loss in
1984 and that he had tinnitus in 1987, but contends that he may
have had both of these disorders for quite a while, but just did
not realize it or thought that they were part of the normal aging
process.
DECISIONS OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the veteran is entitled to service connection for
hearing loss of the left ear with tinnitus, but is not entitled
to hearing loss of the right ear.
FINDINGS OF FACT
1. The veteran's hearing disability of the left ear with
tinnitus is the result of trauma incurred in service.
2. The veteran does not have a hearing disability of the right
ear.
CONCLUSIONS OF LAW
1. Entitlement to service connection for hearing loss in the
left ear with tinnitus is warranted. 38 U.S.C.A. §§ 1110, 1131,
5107(b) (West 1991); 38 C.F.R.
§ 3.385 (1993).
2. Entitlement to service connection for hearing loss in the
right ear is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. § 3.385 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim as to these issues is well grounded within
the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the
Board finds that he has presented a plausible claim. The Board
is also satisfied that all relevant facts have been properly
developed and that no further assistance to the veteran is
required to comply with the duty to assist mandated by 38
U.S.C.A. § 5107 (West 1991).
Currently, the veteran contends that he has bilateral hearing
loss due to exposure to acoustic trauma in service. He asserts
that during his period of active service from February 1972 to
January 1976 in the Marine Corps, he was exposed to loud noises
which resulted in bilateral hearing loss. The Board notes at the
outset that his assertions that he was exposed to acoustic trauma
in service are not in question.
He further asserts that following that period of service, he has
not been exposed to environments productive of loud noises. He
does not assert that he was exposed to loud noises during his
service in the Reserves, nor does he assert that bilateral
hearing loss was incurred or aggravated at that time. The
veteran has contended that he was not afforded audiometric
examinations during service and questions the validity of the
alleged examinations. In order to respond to the veteran's
contentions, the Board will set forth the results of those
examinations.
The veteran's service medical records reflect that the veteran
underwent several audiometric examinations during his period of
active service from February 1972 to January 1976. Specifically,
the veteran underwent an examination prior to entrance in January
1972. At frequencies ranging from 1000 to 4000, all levels for
both ears were 15 decibels (dB), or less.
The veteran underwent an audiometric examination in August 1973.
At frequencies from 1000 to 4000, all levels for both ears were
10dB, or less.
The veteran underwent an audiometric examination in March 1974.
In regards to the right ear, the audiometric examination for pure
tone thresholds revealed: a 10 dB threshold at 500 and a 20 dB
threshold at 6000. In regards to the left ear, the audiometric
examination for pure tone thresholds revealed: a 15 dB threshold
at 500, a 40 dB threshold at 3000, and a 45 dB threshold at 6000.
The veteran underwent audiometric testing at discharge in January
1976. In regards to the right ear, the audiometric examination
for pure tone thresholds revealed: a 10 dB threshold at 500; a 10
dB threshold at 1000, a 5 dB threshold at 2000, a 5 dB threshold
at 3000, a 10 dB threshold at 4000; and a 20 dB threshold at
6000. In regards to the left ear, the audiometric examination
for pure tone thresholds revealed: a 10 dB threshold at 500; a 5
dB threshold at 1000, a 0 dB threshold at 2000, a 15 dB threshold
at 3000, a 10 dB threshold at 4000; and a 20 dB threshold at
6000.
There are no other records reflecting audiometric testing until
1985. In July 1985, the veteran was serving in the Reserves and
underwent testing. In regards to the right ear, the audiometric
examination for pure tone thresholds revealed: a 10 dB threshold
at 500; a 10 dB threshold at 1000, a 10 dB threshold at 2000, a
15 dB threshold at 3000, a 20 dB threshold at 4000; and a 25 dB
threshold at 6000. In regards to the left ear, the audiometric
examination for pure tone thresholds revealed: a 15 dB threshold
at 500; a 10 dB threshold at 1000, a 15 dB threshold at 2000, a
35 dB threshold at 3000, a 30 dB threshold at 4000; and a 25 dB
threshold at 6000. The examiner noted mild hearing loss on the
left.
The veteran was subsequently afforded a VA examination in
February 1991. At that time, the veteran underwent audiometric
testing. In regards to the right ear, the audiometric
examination for pure tone thresholds revealed: a 10 dB threshold
at 1000, a 5 dB threshold at 2000, a 20 dB threshold at 3000, and
a 15 dB threshold at 4000. The average decibel loss was 13 and
the veteran had a speech recognition score of 98 percent in the
right ear. In regards to the left ear, the audiometric
examination for pure tone thresholds revealed: a 10 dB threshold
at 1000, a 5 dB threshold at 2000, a 40 dB threshold at 3000, and
a 25 dB threshold at 4000. The average decibel loss was 20 and
the veteran had a speech recognition score of 94 percent in the
right ear. According to the report of the examination, the
veteran had a high frequency hearing loss and tinnitus as a
result of noise trauma incurred from 1972 to 1976.
Service connection may be granted for disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110, 1131 (West 1991). Service connection for
impaired hearing shall not be established when hearing status
meets pure tone and speech recognition criteria. Hearing status
shall not be considered service-connected when the thresholds for
the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz are all
less than 40 decibels; the thresholds for at least three of these
frequencies are 25 decibels or less; and speech recognition
scores using the Maryland CNC test are 94 percent or better. 38
C.F.R. § 3.385 (1993).
The Board notes that under 38 C.F.R. § 3.385 (1993), the term
hearing loss disability is defined and the criteria is specific.
Therefore, in the absence of disability as defined by that
regulation, service connection may not be granted even when
sensorineural hearing loss is demonstrated during and after
service.
I. Hearing Loss of the Left Ear with Tinnitus
According to the report of the VA examination of February 1991,
the speech reception thresholds at frequencies, 1000, 2000, and
4000 Hertz, were 25 decibels or less; and the speech recognition
score using the Maryland CNC test met the minimum requirement of
94 percent. However, the thresholds for 1000, 2000, 3000, and
4000 Hertz were not all less than 40 decibels. Specifically, the
threshold for 3000 Hertz was 40 decibels. In addition, the
examiner noted the veteran's history of exposure to artillery
noises in service from 1972 to 1976 and concluded that the
veteran had a high frequency hearing loss due to noise trauma.
The examiner also stated that the veteran had tinnitus as a
result of the above factors.
The Board notes that under the applicable criteria pursuant to 38
C.F.R. § 3.385 (1993), the veteran's hearing in his left ear
nearly meets all the criteria for normal hearing with the
exception of having a threshold of 40 decibels at 3000 Hertz.
However, since he did not meet all of the criteria set forth to
establish hearing within normal limits under that regulation, the
Board finds that the veteran should be afforded the benefit of
the doubt as required by 38 U.S.C.A. § 5107(b) (West 1991).
Therefore, the Board concludes that entitlement to service
connection for hearing loss in the left ear is warranted.
Furthermore, the VA examiner who saw the veteran in February 1991
associated the veteran's tinnitus with the noise trauma and high
frequency hearing loss.
Accordingly, the Board concludes that entitlement to service
connection for hearing loss in the left ear with tinnitus is
warranted. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 1991); 38
C.F.R. § 3.385 (1993).
I. Hearing Loss of the Right Ear with Tinnitus
The February 1991 VA examination reveals that the veteran's
hearing status in his right ear meets pure tone and speech
recognition criteria for normal hearing at this time. The
thresholds for 1000, 2000, 3000, and 4000 Hertz were all 25
decibels or less; and speech recognition scores using the
Maryland CNC test was 98 percent, which is over the minimum
requirement of 94 percent.
As previously noted, although the veteran may presently have
diagnosed hearing loss, a disability must be established as
defined by the controlling regulation, 38 C.F.R. § 3.385 (1993).
However, in regard to the veteran's hearing in the right ear,
application of the regulation governing service connection for
impaired hearing reveals that the veteran's hearing status in
that ear currently meets pure tone and speech recognition
criteria. Therefore, entitlement to service connection for
hearing loss in the right ear is not warranted. Since there is
not an approximate balance of the positive and negative evidence,
38 U.S.C.A. § 5107(b) (West 1991) is not applicable.
Accordingly, the Board concludes that entitlement to service
connection for hearing loss in the right ear is not warranted at
this time. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38
C.F.R. § 3.385 (1993).
ORDER
The appeal as to the issue of entitlement to service connection
for hearing loss in the left ear with tinnitus is granted.
The appeal as to the issue of entitlement to service connection
for hearing loss in the right ear is denied.
G. H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988. Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.